Contents Preface and Acknowledgements xi List of Abbreviations xiii Notes on the Contributors xv 1 Commitment to the Rule of Law and Judicial Independence 1 Steve Tsang An uncertain beginning 2 Continuity and changes 12 2 The Rule of Law and Criminal Justice in the Nineteenth Century 19 Christopher Munn The decline of the Supreme Court’s criminal jurisdiction 21 Summary justice, preventive justice and state-created crime: the Magistracy 29 Alternative justice 33 Executive interference in sentences 39 Did the rule of law matter? 43 3 Judicial Independence under the Basic Law 48 Byron S.J. Weng Judicial autonomy of the SAR 49 The principle of judicial independence 50 Application of the laws of the SAR 55 The interpretation of law and judicial review 58 Jurisdictions of the SAR courts 66 Pertinent international factors 67 The hypotheses 69 4 The National Security Factor: Putting Article 23 of the Basic Law in Perspective 73 Hualing Fu Introduction 73 National security and criminal law 74 The political context of Article 23 76 vii viii Contents Crimes (Amendment) (No.2) Bill 1996 78 Official Secrets ordinance 80 Connection with foreign political organizations 82 National security 85 Keeping the common law tradition 87 Democratic conception of Article 23 88 The limits of Article 23 90 Conclusion 91 5 Individual and Institutional Independence of the Judiciary 99 Peter Wesley-Smith Introduction 99 Theory 99 The Basic Law 104 Appointment and removal of judges 108 Financial Security 111 The independence of non-regular judges 115 Institutional independence 120 Other aspects 123 Conclusion 125 6 Prospect for the Due Process under Chinese Sovereignty 132 Johannes Chan Equality before the law 132 Who decides to prosecute? 137 Independence and impartiality of the judiciary 141 Conclusion 150 7 Freedom of the Press and the Rule of Law 157 Richard Cullen Introduction 157 Overview of the media in Hong Kong 158 The regulatory framework 161 The judiciary and the media 163 Prevailing influences 168 Conclusion 173 8 Prospects for the Rule of Law: the Political Dimension 180 Leo F. Goodstadt The Hong Kong environment 181 Contents ix Expectations and apprehensions 185 The Chinese environment 186 Defining the SAR’s legal system 190 Conclusions 194 Index 202 1 Commitment to the Rule of Law and Judicial Independence Steve Tsang In spite of its cosmopolitan character Hong Kong remains essentially a Chinese city. What sets it apart from the People’s Republic of China (PRC) more than anything else is the existence of the rule of law and an independent judiciary. They are generally accepted in Hong Kong as the most important legacy of 156 years of British imperial rule.1 They are also seen as the cornerstone for the future of Hong Kong as a Special Administrative Region (SAR) in the PRC which retains a Leninist political system.2 The inherent contradictions between the latter, in which the supremacy of the Communist Party cannot be challenged, and Hong Kong’s liberal and capitalist system are real. In an important sense whether Hong Kong can maintain its own system and way of life, as provided for in the Sino-British Joint Declaration of 1984 and enshrined in the Basic Law for the Hong Kong SAR (1990), will depend on the survival of what underpin them – the rule of law and an independent judiciary. Equally significant is the commitment on the part of the SAR – the government, the judiciary and the people – to upholding these two principles once they are no longer guaran- teed by the built in supremacy of the British legal and judicial systems before July 1997. The importance of the rule of law and an independent judiciary as the cornerstone for Hong Kong’s future is such that most people tend to take it for granted that they had always worked perfectly well in British Hong Kong. As Christopher Munn makes clear in Chapter 2, this is a gross simplification. The development of both in the crown colony of Hong Kong has to be put in historical perspective. The great emphasis which has been laid on them by senior officials of the SAR government since the handover also needs to be put into context. Leo Goodstadt is right in highlighting in Chapter 8 the reality that the 1 2 Judicial Independence and the Rule of Law in Hong Kong continuation of the rule of law and judicial independence have been hailed by the SAR government not least because Hong Kong has not developed democracy and, in its absence, it is advantageous to, and politically astute for, the administration to focus public attention upon them rather than on the issue of democratization. There is also a question of how Hong Kong’s common law tradition and judicial system can coexist or dovetail the socialist and Chinese legal system in the PRC.3 This is strictly speaking a matter to be governed by the Basic Law. However, as Byron Weng aptly explains in Chapter 3, it is unre- alistic to expect the Basic Law alone to safeguard the rule of law and judicial independence in the SAR since the Basic Law is a piece of legis- lation in a country with a different legal tradition. It is also a country where the respect for the constitution has been haphazard at best and where the Maoist axiom of ‘politics in command’ remains a fact of life. An uncertain beginning The record of China’s handling of relations with Hong Kong since the handover appears to suggest it has basically respected the maintenance of the rule of law and judicial independence in the SAR. Indeed, since July 1997 the Chinese authorities have been much less vocal and inter- ventionist over events in Hong Kong than previously. This was the result of an order issued by Jiang Zemin, Chairman of the PRC and General Secretary of the Communist Party, by which he prohibited heads of government ministries, their equivalent departments in the Communist Party, provinces and special municipalities from interfer- ing into affairs of the SAR.4 The issuance of this order and its being enforced are useful to illustrate the actual implementation of the ‘one country, two systems’ policy. The enforcement of this order was greatly assisted by the careful positioning of the Chief Executive of the SAR in the hierarchy of the state bureaucracy and the Communist Party in China as a whole. As soon as the SAR was founded, its Chief Executive was given the rank of a Vice-Premier or State Councillor, one bureaucratic grade above that of a minister in Beijing or a governor in the provinces.5 Even in the all important party–state relations a similar special arrangement was made. In terms of its importance, the SAR ranks equal to the special municipalities of Beijing, Tianjian and Shanghai whose party chief is of Poliburo rank. In order not to put a party man senior in rank to Tung Chee-hwa in the SAR Beijing delib- erately appointed a mere member of the Communist Party’s Central Committee, and not of the Poliburo, to head the Party’s Work Steve Tsang 3 Committee in Hong Kong. This party head, Jiang Enzhu has also been instructed to operate under the cover of his public duties as Director of the local branch of the Xinhua News Agency rather than like a normal party secretary in a special municipality. This anomaly is undoubtedly intended to prevent lower ranking PRC cadres from putting pressure on the higher ranking SAR Chief Executive and thus minimize any attempt by them to further their selfish personal, provincial or depart- mental interests. This is also in line with Beijing’s established policy towards Hong Kong which is to exercise maximum flexibility within the rigid framework of protecting the sovereignty of the PRC and the supremacy of the national interests as defined by the Communist Party leadership.6 The continuation of this basic policy represents the commitment on the part of Beijing to give the SAR reasonable scope to uphold the rule of law and judicial independence. The survival and prospering of the rule of law and judicial independ- ence do not depend solely on Beijing’s policy and actions, however. They are also dependent on the commitment of the SAR. This is reflected in the protection against abuse in the name of national secur- ity which is examined by Hualing Fu in Chapter 4, the state of institutional protection which forms the focus of Peter Wesley-Smith’s inquiry in Chapter 5, respect for upholding the due process which Johannes Chan scrutinizes in Chapter 6, and an independent and free press which is analyzed by Richard Cullen in Chapter 7. They are further affected by events within the SAR, such as the approach and behaviour of its judiciary, law officers and the executive branch. In this regard Hong Kong has a mixed record in its first two years as the SAR. In the celebrated and controversial case concerning the SAR courts’ handling of the right-of-abode of illegitimate children born to at least one parent who has such right in Hong Kong, the Court of Final Appeal (CFA) ruled on the basis of the law in January 1999 and ignored the very serious political and other practical problems which its ruling would cause. Under the Basic Law children born to Chinese citizens who are permanent residents of Hong Kong are deemed to have the right of abode.7 What is not clear are whether children born out of wedlock or before their parents acquired the right of abode can enjoy the same right, and whether the Court should secure an interpretation from the National People’s Congress (NPC) or its Standing Committee on the relevant provisions in the Basic Law, which will be binding on the Court.8 On the first two questions the Court ruled in favour of the children.